It might not seem the most exciting thing to be thinking of when you are planning a fun filled adventure with your children, but checking if you are legally entitled to travel as a family needs to be top of the list. You may need the other parent’s consent or you may need a court order if the other parent doesn’t agree.
What is Parental Responsibility and Why Does It Matter?
Checking who holds Parental Responsibility is a good starting point, as that is the legal responsibility, obligation and authority that a parent has for their child – mothers automatically have this from the child’s birth, but the situation for fathers is not so straightforward, and similarly for second parents and same-sex couple arrangements. Parental Responsibility includes making key decisions with respect to a child such as deciding what name they are known by, consenting to medical treatment and deciding what school they attend. It is also relevant to issues with respect to holidays abroad.
Do I Need the Other Parent’s Permission to Take My Child on Holiday?
A holiday in the court’s jurisdiction of England and Wales is not such an issue as unless there is a prohibition upon travel by way of an existing Prohibited Steps Order, or if the plans would prevent a Child Arrangements Order being complied with then you should be able to do this. Telling the other parent with good notice is always advisable, and sharing information in advance is always helpful co-parenting. In short, however, unless the court has said you cannot take the children on holiday, or doing so would prevent the other parent from spending time with the children that has already been ordered by the court, it should be fine.
The issue is different when the holiday is taking place abroad, and outside of the court’s jurisdiction. The same principles apply in terms of any existing orders that might already impact on the issue, however if there are no orders in place, if you have the written agreement of all persons with Parental Responsibility then you can travel. Without this as a parent you may find yourself inadvertently committing the criminal offence of child abduction.
When is a Court Order Required?
Where consent isn’t provided, however, a court order would be required – a Specific Issue Order to allow the children to be taken abroad for the purposes of a holiday. Sometimes a party will hold a Child Arrangements (Lives With) Order if there have been previous proceedings relating to the children, and that order provides the person with the benefit of the order the ability to take the children abroad without the consent of all others who hold Parental Responsibility, for up to one month. A Special Guardian of a child is able to take a child abroad for a period of up to 3 months without having to seek the consent of all others holding PR.
Why This Question Comes up so Often
The issue is very common when parties separate or divorce. When things are going well and the family is united, trips with the children will take place frequently whether or not both parents are present. Sometimes border control can take an enthusiastic approach and query issues of consent – anecdotally when the children have a different surname to one parent, as an example – but being prepared for these sorts of eventualities is no bad thing. Depending on the nature of the breakdown of the adult relationship, it is commonplace for parties to take unexpected stances to requests to take the children away for periods of time. Sometimes it can be about feeling upset at losing out on time with the children, sometimes there can be a genuine concern about the holiday destination or a concern that full information is not being provided such as where the children will be staying, emergency contact details, etc.
Unless there are safeguarding reasons to justify not doing so, it is almost always advisable that full information about proposed holidays are provided in advance. Where is the holiday taking place? When and where will flights take place, how can emergency contact be made if needed? How will any missed contact be made up, and could there be indirect contact during the trip with the parent left behind. These are just some very valid questions asked, and it is always important to share information like this if you are looking to invite the other parent to agree to a trip. You should allow plenty of time to reach agreement and invite this to be provided in writing. Seeking written consent is important since it will allow for this to be shown to travel officials or be retained as evidence of consent in the event that it is subsequently withdrawn.
Court applications such as those to seek a Specific Issue Order to go abroad are not straightforward and often require significant court time. It needs to be factored into planning the time that might need to be spent in the court to obtain an order, if agreement cannot be reached. Travel documents need to be in order, it may be that time needs to be allowed for requesting or updating a child’s passport and so this will need to be taken into account also in the overall timeframe.
You might be planning a holiday, or equally faced with a request from the other parent. Entering into a dialogue and raising queries in good time is a sensible starting point. Before a court application can be made it is also likely that mediation would need to be attempted. It is possible to apply for exemptions in this respect but only if certain criteria are met. The court’s current approach is also aimed at exhausting alternative dispute resolution methods before resorting to an application and there is a requirement to confirm to the court those efforts before any first hearing.
What Will the Court Consider?
The decision as to whether or not a holiday should take place will ultimately come down to the children’s welfare. The court’s paramount consideration when faced with a dispute about the children’s arrangements is their welfare, and it will want to make a decision that meets their best interests. Ultimately, unless there are safeguarding reasons that contraindicate a holiday would be in the children’s best interests – if the holiday would be unsafe or risky, or there were concerns about the children not being returned – then it may be difficult to persuade a court not to allow a trip. There can be assurances sought and additional recitals or requirements included in any court order that alleviates concerns about the return of the children or travel documents, but as a general principle the court would encourage the ability for children to have holiday time with each of their parents if it is safe to do so. The court recognises the significant benefit to children in spending quality holiday time with each parent and so unless there is good justification or risk issues that override the potential benefit then if a holiday can be properly planned and details shared with each party then it is likely to take place.
When Should You Seek Legal Advice? Planning Ahead is Key…
It is also important to plan ahead. If you are thinking about a holiday with the children abroad it often takes a great deal of planning at the best of times! Careful inspection of school holiday periods go without saying but also checking how it might impact upon the children spending time with the other parent. If there is an existing court order in place there will need to be particular attention paid to how that might fit into the request and whether or not you are wanting to go on holiday, or facing such a request, planning in advance is key.
Seeking advice at the earliest stage possible is vital – these things take time and the court process can be tricky and convoluted, and the pressures upon the family court are such that hearings are obtained at a premium. It can often take months to seek a contested hearing and planning ahead and avoiding hurdles further down the line can not only save time and money, but also ease the burden of the stress on a situation that should be something that the children are eagerly looking forward to. It might be as simple as dispelling a myth or a point that you hadn’t considered when making plans for a holiday, or equipping you with advice to know that you can ask questions, information or put forward alternatives when met with a request for a holiday, that might find a solution that didn’t look possible at the outset. Court proceedings should always be the last resort and it may be possible to navigate a way forward without having to take such a step that might also help enormously in the long run and preserve more positive relations for the years ahead.
If you need further advice then please get in touch with our Family Law team.